102 Iowa L. Rev. 1 (2016)
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In this paper we offer a jurisprudential explanation of the structure and evolution of antitrust law, arguing that it provides the best example of Ronald Dworkin’s famous theory of integrity in action. Dworkin’s jurisprudence describes antitrust law strikingly well because it chooses right answers by considering what guiding principle best fits and justifies the relevant law. In antitrust, the principle of consumer-welfare promotion provides the best fit for antitrust statutes as a whole because, although legislators mentioned other objectives, they did not believe they were in conflict with the first and overriding objective of consumer welfare. Moreover, even if other principles—say, the protection of small businesses—can compete with consumer-welfare promotion in terms of fit, such other principles cannot compete in terms of justification, because they cannot be coherently achieved by judges in antitrust cases and are better undertaken by other kinds of legislation. In contrast, legal positivism—the dominant jurisprudential theory to which Dworkin’s integrity played the foil—cannot explain antitrust law, because antitrust decisions often cannot be generated by the sparse statutory text available, even when combined with policy discretion.

Dworkinian jurisprudence thus explains why court decisions in antitrust rely on economic principles rather than statutory text or ad hoc policy. Economic principles provide the most reliable and consistent path to promoting consumer welfare. This distinctive jurisprudence also explicates many unusual features of antitrust doctrine. For instance, the Supreme Court is unusually willing to overrule long-established cases, lower courts sometimes fail to follow older Supreme Court precedent, and courts treat Department of Justice guidelines in the area as powerful determinants of their own decisions. This breakdown of the hierarchy of precedent and the judicial/executive branch cross-pollination cannot be understood through the positivist framework. If economic principles are immanent in law, however, these practices make sense. When the pull of such principles is strong, both the executive and judiciary at all levels are engaged in a joint enterprise of explaining and applying the economics to challenged business practices and agreements, rather than guarding rival areas of policy discretion as typical in our separation-of-powers system.

Dworkin’s integrity is not only the best explanation of antitrust jurisprudence, but also an attractive jurisprudence in this area. As a general matter, Dworkin’s theory has been sharply criticized as unworkable, because it is argued that judges have no way of discovering the principles that ought to guide their decision-making. Moreover, people simply disagree about the principles’ content or application. While these criticisms have substantial merit in fields like constitutional law, in antitrust, microeconomics does provide consensus principles that can be relatively objectively applied to decide cases.

Tuesday, November 15, 2016